International Dispute Resolution: International Commercial Arbitration: 2018-19

Course number: 3007D.03https://digitalcommons.osgoode.yorku.ca/casebooks/1103/thumbnail.jp

Strengthening the legal regime for the recognition and enforcement of arbitral awards in Nigeria

In Nigeria, provisions for the recognition and enforcement of arbitral awards are made under local and international instruments. While these instruments facilitate the smooth enforcement of awards in certain respects, the enforcement process is hampered in other respects by defects in these laws. For example, the absence of statutory time limits for the enforcement of awards under the Arbitration and Conciliation Act (ACA) 1988, and the resulting reliance on Federal and State Limitation Laws, may sometimes mean that an award creditor is denied justice through no fault of theirs. Also, the enforcement process is impeded by the slowness in the disposal of cases by the Nigerian courts. In fact, proceedings for the enforcement of awards have been known to last for twelve years. These problems and a number of others to be discussed in this paper could affect investor-confidence and consequently, the current foreign investment drive by the Federal Government. The paper looks at the various instruments for the recognition and enforcement of domestic and foreign awards in Nigeria against the backdrop of their peculiarities, strengths and weaknesses. It also takes a brief look at the issue of slowness in the disposal of cases by the courts using IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation as a point of reference. Having considered these issues, the paper posits that the current regime for the recognition and enforcement of arbitral awards could be more effective. As Nigeria has continued to rank poorly on the World Bank Ease of Doing Business annual surveys, the paper stresses that one way of improving this rating is by entrenching a more effective framework for the enforcement of awards, particularly as arbitration has become the preferred dispute resolution mechanism in international commercial transactions. The effect of this is that investors will be more willing to invest in Nigeria knowing that in the event of a dispute or a claim they will be able to fall back on our laws and justice system

Investor-state dispute settlement in the TTIP - A fair dispute resolution mechanism or the bane of democracy?

On July 8, 2013, the United States and the European Union started negotiations for the Transatlantic Trade and Investment Partnership (TTIP). The TTIP is a proposed international trade and investment agreement (IIA) that aims to create the largest free trade area in the world. Despite the promises of the TTIP, including job opportunities and economic gains of over €100 billion in the EU alone, there have been massive protests against the TTIP. The TTIP is according to some critics a “threat to democracy, the environment, consumers and labour standards”. The most contentious issue with the TTIP has been the inclusion of an investor-state dispute settlement (ISDS) provision. An ISDS provision grants investors the right to submit a claim against a state to an investment tribunal if the state has caused the investor damage by breaching an IIA entered into with the home state of the investor. The subject of this thesis is international investment law and the main purpose of it is to examine arguments for and against the inclusion of an ISDS provision in the TTIP and how such an ISDS provision could be altered to avoid some of the potential downsides with ISDS. Furthermore, the thesis will discuss the proposal put forth by the European Commission to establish the Investment Court System (ICS). The thesis will conclude with a recommendation for or against ISDS in the TTIP as well as for or against the ICS. Foreign direct investment is sometimes called the life blood of global economy. Attracting foreign capital is positive for states in many regards. For investors there are some risks associated with investing in a foreign state. Expropriations and discriminating treatment by the host state are such potential risks faced by the foreign investor. International investment protection has evolved over history, from gunboat diplomacy in the 1800s to a system based on BITs and other IIAs in modern time. Modern IIAs protect the investor by providing protection standards such as fair and equitable treatment and most favourable nation treatment, as well as ISDS. Common arguments against ISDS are that ISDS is a threat to state sovereignty and the state’s right to regulate, that investment tribunals are biased in favour of the investors, that ISDS lacks fundamental procedural protections and that it is not transparent enough. While there are some issues with ISDS, for instance a lack of an appeal mechanism, much of the criticism against ISDS is based on misunderstandings and misrepresentations of the system. The conclusion of the thesis is that ISDS is the most effective and fair dispute resolution mechanism available for the TTIP. While the ICS is an interesting proposal which remedies some of the issues associated with ISDS, such as the lack of an appeal mechanism, it is doubtful whether the need for such a system is pressing enough. ICS might lead to proceedings that are even more costly and lengthy than ISDS, which is undesirable. The thesis concludes that the potential downsides outweigh the potential gains with the proposal. Unless the ICS is modified to deal with some of these downsides it should not replace ISDS in the TTIP

THE DOCTRINE OF PUNITIVE DAMAGES AND INTERNATIONAL ARBITRATION

This article analyzes the possibility to award punitive damages in international arbitration. First of all, it studies the functions of punitive damages in US litigation and the reasons behind the growing interest for this remedy in civil law countries and in the doctrine of international arbitration. Secondly, this article argues that, notwithstanding the fact that arbitration has become the natural judge of interna- tional commercial disputes, the competence of international arbitrators cannot be extended to remedies of quasi-criminal nature, such as punitive damages. The work finally briefly analyzes the possibility to award punitive damages in international investment arbitration and demonstrates that it is not possible to observe, in international law, a remedy which could be compared to punitive damages as recognized in national law systems

The quest for transparency in investor-state arbitration: Are the transparency rules and the Mauritius Convention effective instruments of reform?

In recent years, critics have questioned the legitimacy of international investment law, particularly investor-State arbitration on the grounds, amongst others, that confidentiality and lack of transparency in arbitral proceedings pose a threat to the basic principles of public law and democracy. In response, minimal transparency measures have been introduced by States, regional international economic organizations and the International Centre for the Settlement of Investment Disputes (ICSID) over the last two decades. More recently, the Transparency Rules and the Mauritius Convention were introduced by the United Nations Commission on International Trade Law (UNCITRAL) for a more far-reaching impact. These instruments have been widely applauded as the much awaited solution for entrenching transparency and enhancing the legitimacy of treaty-based investor-State arbitration. But will they really establish transparency in investor-State arbitration considering the opt-out provisions in Article 1(1) of the Transparency Rules and Article 3(1) of the Mauritius Convention? In attempting this question,the article examined the concept of treaty based investor-State arbitration, its public character and the possible effect the opt-out provisions could have on the quest for transparency. It posited that a mechanism that allows parties – States and foreign investors – a choice whether or not to apply these instruments in a given arbitration will impede the attainment of the objective of entrenching transparency in investor-State arbitration

Dispute resolution through ad hoc and institutional arbitration

This paper considers the differences between institutional and 'ad hoc' arbitration methods, and the advantages and disadvantages of each. The purpose of this paper is not to determine what is the better option, ad hoc or institutional arbitration as this will be dependent upon the parties themselves, the nature of the contractual relationship and the dispute itself. The func- tioning of the ad hoc and institutional arbitration models determine the nature of the disputes which can be arbitrated by them. The success and efficiency of the systems in consonance to the objectives of arbitration rely heavily on the implementation and application of the prin- ciples of ad hoc and institutional arbitration

Notion, nature and extent of consent in international arbitration

PhDArbitration is a consensual and private mechanism of dispute resolution which leads to an enforceable arbitral award. In the traditional field of commercial arbitration the agreement to arbitrate is considered to be the cornerstone of arbitration. On the other hand, in the international context, arbitration has become increasingly used in other areas, like investment arbitration and sport arbitration, where the consensual nature of arbitration appears to be different. At the beginning of the study it will be underlined that, when speaking about the consensual nature of arbitration, one needs to differentiate between consensual as one of the essential criteria for arbitration’s qualification and consent as a condition for the validity of the arbitration agreement. This differentiation is especially important in sport arbitration where, between the athletes and sport organisations, there is often induced consent rather than bargained consent. By sustaining that the consensual character of arbitration needs to be differentiated, but not abandoned, the thesis clearly takes a contractual, or better, a consensual approach. It is preferable to speak of a consensual approach, because the agreement to arbitrate does not always take the form of an arbitration agreement in the traditional sense. This is particularly the case in investment arbitration. This thesis is a comparative study. However, not only a comparison of national laws and different arbitration rules will be undertaken, but the thesis will also consider the evolution of arbitration by discussing the implications that evolution has had on the perception of the consensual character of arbitration. Moreover, and above all, the main body of the thesis will be dedicated to a comparison focused on the consent issues of the three main areas where arbitration is nowadays used in an international context: commercial arbitration, investment arbitration and sport arbitration. It will be stressed that, although already in the classical area of commercial arbitration, the structures of arbitrations may be of different types, ranging from bi-party situations to multiparty scenarios, and might play a role when considering the consensual nature of arbitration, this becomes even clearer when one analyses the other fields of arbitration. The thesis then also takes into account that, in the various phases of the arbitral process, the expectations with regard to the consensual character of arbitration may be different. In the thesis it will be argued that the reason the consensual nature of arbitration evolved over time, and the reason that it is different among the various fields of arbitration, might be seen in the fact that there is an inherent tension between the contractual and the jurisdictional side of arbitration. In this situation of “inherent tension” consent may be perceived as being more or less present. Nevertheless, the “intensity” of consent does not affect the basically consensual character of arbitration. While the four traditional theories (jurisdictional, contractual, mixed/hybrid and autonomous) used to explain the juridical nature of arbitration focus rather on the relationship between State and arbitration, the thesis attempts to indicate other solutions which seem to be more able to explain the use of arbitration in the different areas/fields where arbitration is expected to resolve disputes

Subsurface urban heat island and its effects on horizontal ground-source heat pump potential under climate change

Recent urban air temperature increase is attributable to the climate change and heat island effects due to urbanization. This combined effects of urbanization and global warming can penetrate into the underground and elevate the subsurface temperature. In the present study, over-100 years measurements of subsurface temperature at a remote rural site were analysed, and an increasing rate of 0.17⁰C per decade at soil depth of 30cm due to climate change was identified in the UK, but the subsurface warming in an urban site showed a much higher rate of 0.85⁰C per decade at a 30cm depth and 1.18⁰C per decade at 100cm. The subsurface urban heat island (SUHI) intensity obtained at the paired urban-rural stations in London showed an unique 'U-shape', i.e. lowest in summer and highest during winter. The maximum SUHII is 3.5⁰C at 6:00 AM in December, and the minimum UHII is 0.2⁰C at 18:00PM in July. Finally, the effects of SUHI on the energy efficiency of the horizontal ground source heat pump (GSHP) were determined. Provided the same heat pump used, the installation at an urban site will maintain an overall higher COP compared with that at a rural site in all seasons, but the highest COP improvement can be achieved in winter

Reconocimiento y ejecución de laudos arbitrales en el derecho internacional de inversiones

36 páginasAlthoügh the arbitration award confirms the creditor's credibility, the path is still long until effective compliance with the ruling is in their favor, due to the procedures that must be followed according to national laws of the countries in which the judgment is intended to be executed. and dilatory strategies of the losing part. In investment arbitration there is no greater difficulty when the party convicted in the arbitration award voluntarily complies with the resolution, which concludes the arbitration proceeding. However, the figure is dlfferent when this voluntary compliance by the condernned state does not occur and the investor must activate mechanisms established by the international standard to achieve that execution, according to the ICSID convention ar the 1958 New York Convention In the middle of this the state condemned in arbitration award can argue the immunity of execution as the only means of defense to avoid executing an award against him.Si bien el laudo arbitral confirma la acreencia del ganador, el camino aun es largo hasta conseguir el cumplimiento efectivo del fallo a su favor, esto debido a los procedimientos que se deben seguir según leyes nacionales de los países en los que se pretende ejecutar el fallo y las estrategias dilatorias de la parte perdidosa. En el arbitraje de inversión no existe mayor dificultad cuando la parte condenada en el laudo arbitral cumple voluntariamente la resolución, lo que concluye el trámite arbitral. Sin embargo, la figura es distinta cuando ese cumplimiento voluntario por parte del estado condenado no se da y el inversionista debe activar mecanismos establecidos por la norma internacional para conseguir esa ejecución, de acuerdo a la convención de CIADI o la Convención de Nueva York de 1958. En medio de esto el estado condenado en laudo arbitral puede argumentar la inmunidad de ejecución como único medio de defensa para evitar se ejecute un laudo en su contra.Magíster en DerechoMaestrí

Exploring the Concept of Arbitral Awards Under the New York Convention

Acknowledgements I would like to express my gratitude to Dr Patricia Živković, whom I was lucky to be taught by at the University of Aberdeen, in the area of international commercial arbitration. Dr Patricia's work ethic, expertise and passion for international arbitration have inspired me to not only author this work but to pursue a career in the sector. Funding The author received no financial support for the research, authorship and/or publication of this article. Open access via Sage agreementPeer reviewedPublisher PD